iOn October 27, we sent a client alert[1] regarding the September 22 Executive Order on Combating Race and Sex Stereotyping, which prohibited certain diversity training programs for federal employees and contractors. On December 22, a federal judge issued a nationwide injunction blocking the government from enforcing the Order.[2]
The judge determined that the plaintiffs, a group of non-profit organizations from around the country that offer trainings that would likely violate the Order, were likely to succeed on their claims that the Order violated their constitutional right to free speech and was too vague. Importantly, the court’s ruling is nationwide in scope — it prevents the Department of Labor and other executive departments from enforcing the Order as to any government contractors and grant recipients, not just the plaintiffs in the case.
As a result of this court ruling, federal contractors may return to implementing diversity and inclusion trainings as they see fit, without fear of running afoul of the Order. The administration may attempt to appeal the court’s decision to the Ninth Circuit, but it is unlikely any decision from the appellate court would be issued before the inauguration on January 20, 2021. President-elect Biden has expressed opposition to the Order[3], and it is unlikely his Department of Justice will continue to seek its enforcement in court.
